A dispute over the appropriate procedure for the detention in the Central Mental Hospital (CMH) of a mentally ill man, described as dangerous and a "grave" risk to himself and others, has come before the High Court.
The HSE wants the man, due for release after serving sentences for serious criminal offences, to be made a ward of court and detained, under the court’s wardship jurisdiction, in the CMH.
No other centre is considered capable of securing his safety and welfare and the issue arises because his situation is not catered for under the 2001 Mental Health Act, the court heard.
Lawyers for the man agree he should be in the CMH but say he should be detained under the provisions of the 2001 Act and the court can, and should, make certain orders to achieve that. They say that would afford him greater protections as a detained person in accordance with the State’s human rights obligations.
The 2001 Act provides for a person such as the man to be treated in an “approved centre”, other than the CMH, but the court was told no other approved centre was in a position to provide the secure detention and treatment necessary.
Day-long hearing
The president of the High Court, Mr
Justice Peter Kelly
, reserved judgment on the HSE’s application after a day-long hearing on Friday which was observed by 13 registrars from the CMH as part of a court familiarisation experience. The judge ordered the man remain detained in the CMH pending his ruling.
The wards of court jurisdiction is administered by the president of the High Court and, at the outset, Mr Justice Kelly said he wanted to make clear, “certainly since I became president”, all detained wards of court have their detention regularly reviewed at least every three to six months and also have a range of other protections.
On the facts of this particular case, including agreement the man requires to be detained in the CMH and the 2001 Act does not reduce the scope of the wards of court jursdiction, the dispute appeared akin to “a lawyer’s picnic”, he remarked.
In submissions, Gerard Durcan SC, for the HSE, said it was not disputed the man could be detained within the wardship jurisdiction. It had been established he is of unsound mind and the “overwhelming balance” of the evidence was he needs protection for his own interests and those of everyone else.
Statutory ways
There were two statutory ways of dealing with this matter and it was for the court to decide the best route, he said. This was a situation where the legislative remedy was “inadequate” and the High Court had to be involved in some way because this case did not fall within the provisions of the 2001 Act.
Feichin McDonagh SC, for the man, said the 2001 Act affords more protections, including in relation to review of his detention, and rights to be informed of, and to make representations about, proposals to change his medication or to restrain or isolate him.
Mr McDonagh rejected the dispute was a “lawyer’s picnic” and said important human rights issues were involved. Counsel stressed he was not criticising the wards of court scheme but his case was the man was entitled to avail of the 2001 Act, particularly because he was likely to be detained for a long time, possibly decades.
The HSE was seeking to short-circuit procedures of the 2001 Act by opting to have him made a ward of court, counsel said. The court should not take the significant step of making the man a ward but instead make “simple” orders under its inherent jurisdiction ultimately leading to the man being detained in the CMH under the 2001 Act.
